417 F.2d 569 (5th Cir. 1969), 26719, Gomez v. Florida State Employment Service

Docket Nº:26719.
Citation:417 F.2d 569
Party Name:Pete GOMEZ et al., Plaintiffs-Appellants, v. FLORIDA STATE EMPLOYMENT SERVICE et al., Defendants-Appellees.
Case Date:October 09, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 569

417 F.2d 569 (5th Cir. 1969)

Pete GOMEZ et al., Plaintiffs-Appellants,


FLORIDA STATE EMPLOYMENT SERVICE et al., Defendants-Appellees.

No. 26719.

United States Court of Appeals, Fifth Circuit.

October 9, 1969

Page 570

Kent Spriggs, Oxford, Miss., Joseph Segor, Miami, Fla., T. Michael Foster, Gerald Cassidy, Fort Myers, Fla., for apopellants.

Alan R. Schwartz, Miami, Fla., Robert M. Eisenberg, Charles P. Milford, Jr., Jacksonville, Fla., Patrick H. Mears, General Counsel, Tallahassee, Fla., James R. Parks, Miami, Fla., Sorokoty, Hagaman, Morrissey & Minaco, Ray A. Morrissey, Jr., Naples, Fla., for appellees Raymond Creel and naples Farm, Inc.; Horton & Schwartz, Miami, Fla., of counsel.

Before JOHN R. BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit judges.

JOHN R. BROWN, Chief Judge:

Remarkable as it may seem in this litigation prone world, this is the premier case brought under a statute thirty-six years old. This case raises for the first time 1 the question of whether under the Wagner-Peyser Act of 1933 2 and the regulations 3 promulgated by the Secretary of Labor pursuant to that Act migratory farm workers who accept work through the employment system set up by the Act and regulations have rights and remedies for violations. The question is whether these workers have rights and remedies under which they can get relief in Federal Courts when they are deprived of the protection and benefit of the wages and working conditions promised by the Act and regulations by employers and state officials-- state officials charged with the protection of the workers' interest. Here the District Court dismissed the complaint on grounds that it had no jurisdiction and that the complaint failed to state a claim for which relief could be granted. We reverse and remand.

The employment system involved here does not supply only agricultural workers but workers in all areas. It is an interstate system that operates through local, State-controlled offices that are subject to the regulations 4 of the Secretary of Labor and that receive applications for work and workers and make

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a series of attempts in wider and wider areas to fill the applications. 5

The system was established in 1933 when Congress passed the Wagner-Peyser Act, which established the United States Employment Service as a bureau of the Department of Labor. The Act's basic objective was to establish an interstate system for the recruiting and transfer of labor. 6 The Act, quite obviously, was also intended to offer some protection to those employees who shift about the country 7 to meet the needs of those employers who voluntarily use the resources

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of the federal govewrnment to secure workers. 8

These objectives were to be accomplished through that well-known device of 'cooperative federalism', and grant-in-aid system. 9 Under the particular system established by the Act, the state agencies, which are substantially funded by federal money and are subject to the regulations of the Secretary of Labor, 10 process applications for workers and, after concentric local searches to fill the application, send the request through the interstate facilities of the United States Employment Service. 11 Because of its information about the supply of labor in all parts of the country, the Service then is able to forward the application-- 'Clearance Order'-- to a state agency that can fill the request.

In 1951, reflecting the growing national concern about the deplorable condition of many migratory Americans, usually Negroes or Mexican-Americans, who harvest the food for the nation's tables, the Secretary of Labor first promulgated referral standards for farm workers. (16 F.R. 9142). The standards, as those that followed, 12 were obviously designed to protect those workers that were acquired when farmers voluntarily sought the benefits of this federal system.

But conditions of farm workers apparently remained much the same despite these and other efforts. Their plight was vividly described by the Secretary of Labor in his letter seeking the Attorney General's opinion on the Secretary's power to promulgate what became substantially the regulations in question here. 13 The opinion referring to the Secretary's letter used these strong words: The 'housing provided for migrant farm workers 'has frequently been overcrowded, unsanitary, lacking beds and bedding, unheated, and a fire hazard. Some migrants have even been required to sleep in the open, completely exposed to the elements.' These conditions 'breed disease and thus endanger the health of the whole community. " 14 The conditions were there summed up in the direct and equally pungent words of the report of a Presidential study commission:

'Beyond wanting migrants to be available when needed and to be gone when not needed, they are expected to work under conditions no longer typical or characteristic of the American standard of life. In a period of rapidly advancing job and employment standards, we expect them to work at

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employment which, for all practical purposes, has no job standards.' 15

It is the 'job standards' promulgated by the Secretary under which Plaintiffs ask for relief. The standards are relevant not because they are self executing and apply of their own force to employing farmers. Rather, they become operative only through voluntary use of this Government Employment Service. 16

Plaintiffs, twenty-nine migratory farm workers, six of whom appeal, alleged that in the fall of 1967 Naples Farms, Inc., through Raymond Creel, the superintendent, sought to take advantage of the recruitment service provided by the Florida State Employment Service and the United States Employment Service. The requisite forms were filled out and the request for workers-- 'Clearance Order'-- was eventually sent through the interstate facilities of the United States Employment Service to Texas. In Texas the Texas State Employment Service forwarded the request to Plaintiff Pete Gomez 17 in Edinburg, Texas.

Plaintiffs also allege that in response to the request they went to Florida to accept the jobs. When they arrived, however, they found that the wages were lower than those called for in the regulations and the housing was woefully inadequate and far below the requirements 18 that should have been met before the request of 'Clearance Order' had been processed. The list of grievances is long: There was no electricity in most cabins. 19 None of the cabins had running water and there were no working toilets. 20 There were no facilities

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for garbage pick-up or disposal. 21 There was no access to drinking water. 22 There were no workable showers. 23 And none of the cabins had any heat at all. 24

It is also alleged that in February 1968 Plaintiff Gomez sought to rectify the situation. Believing that his proper avenue of redress was the Lee County Board of Health, he got Everett Cooper, a sanitarian for the Lee County Board of Health, to come to the campsite. Far from seeking compliance by the employer with the state health regulations or the regulations of the Secretary of Labor, however, Cooper threatened Gomez with a $500.00 fine for each offense if the houses were not repaired.

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The basis of Plaintiffs' complaint against the employees of the state employment agency is that they failed to meet the obligations imposed on them by the regulations. (See note 5, supra). It is directly charged that they made no attempt to determine whether Naples Farms would comply with the regulations and by this failure deprived Plaintiffs of the benefit of these regulations. Naples Farms is alleged to have intentionally deprived Plaintiffs of the protection of the regulations by misleading the State officials. Likewise, Cooper, the sanitarian, is a defendant because of Plaintiffs' claim that he intentionally deprived them of the protection of the regulations. Finally, Plaintiffs allege that all Defendants not only acted intentionally but that they acted jointly and as a part of a conspiracy.

Since there is no diversity jurisdiction, the Plaintiffs, although their damages may be real, can obtain relief through the Federal Court only if damage was done to a federal right that the Federal Courts are empowered to protect. The existence of the federal right in this case turns on whether the Wagner-Peyser Act, 29 U.S.C.A. 49 et seq., and the regulations of the Secretary of Labor promulgated pursuant to the Act bestow rights that the workers may assert, and if so, whether the Wagner-Peyser Act and the regulations created a federal remedy. Additionally, the claim is made under the civil rights acts that the rights created by the regulations and Act, are 'privileges, or immunities secured by the * * * laws' 25 of the United States.

We start with the proposition that there can be no doubt that the regulations of the Secretary of Labor were intended to protect the interest of the workers. The conditions were deplorable. (See note 14, supra, and accompanying text). There were no standards. The Secretary was concerned about preventing the use of the federal resources to help prolong these conditions and to subvert other efforts to improve the conditions of the workers. In words attributable to the Secretary of Labor, the regulations were said to be designed to prevent 'the public employment service from being utilized to send workers over long distances to employment providing quarters dangerous to their health and safety.' (Attorney General's opinion note 7, supra at 409). The Secretary's concern with workes, their wages, living and transportation conditions as being at the heart of the Secretary's purpose in promulgating more effective standards is attested by the Attorney General's paraphrase:


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